IN MY STRATA THE SMOKERS HAVE IT.
At last night’s AGM, the last item on the agenda was a proposal for a bylaw to restrict smoking. The current restriction established by BC Health – already in place – states no smoking allowed within 6 meters of air intakes, entrance doors and windows. The proposed bylaw formulated by Strata Council means that smoking would not be permitted in all common and limited common areas. Implicitly, this means that smoking would be allowed strictly inside the strata units.
As a frequent filer of complaints on second hand smoke, I earned the right to second the motion. Doesn’t that sentence sound like a song?
You might think that would be a reasonable bylaw and would pass. You’d be wrong.
But alas, the need for addicted people in our strata complex of town houses to keep smoking inside and outside their unit, and in the breezeways, and on their balconies (right beside non-smokers) is strong. That is a fact, well known of addicted people. Pretty soon the smoking is going to be expanded to include the much more pungent fragrance of marijuana – to be legalized next year – in my unit already a recurring event when my neighbour start smoking it after she gets up around 11 am.
However, what surprised me is their inordinate level of feeling entitled to live out their addiction without thought for neighbours. That was last night utterly self-evident, although it was clearly not evident to the smokers themselves, who spoke with certainty and self confidence, of rights.
Four people spoke publicly against the motion and praised the advantages for the complex, for future purchasers, and for the price of the units when smoking is allowed.
They brought arguments to the floor in their defence of smoking, such as:
– when they bought the unit, smoking was allowed; it wouldn’t be fair to stop that now and they had the right to continue smoking,
– others said they didn’t smoke, but wanted their visitors to be able to smoke on their deck.
– another commented he had tried to stop smoking for 40 years and failed and would ignore the bylaw.
– a bylaw to restrict smoking might make it harder to sell units in the future.
– the bylaw was proposed for 20 years and failed each time, so why not give up trying.
– the deck was private property and nobody can restrict what an owner does there.
Remarkably, no health issues were within sight of these speakers, or the fact that through your doctor one can get smoking cessation medication for free.
And really, what does it take to ask your smoking visitor to step outside and walk the ten steps to the parking lot, or across the street? Are people that hesitant to confront visitors–friends and relatives–who surely would respect your wish to stay in a healthy environment? But, no – misery wants company.
Changes in a complex are necessary over time and indicate that a council is doing their job in taking care of the complex. If the roof construction turns out to be faulty, surely owners would agree that changes are needed to prevent future leaks. So why are changes rejected to improve the air quality and prevent others from polluted air, easily fixed by a single bylaw? Wouldn’t that make sense to a rational person?
And therein lies the rub. Smokers are not rational people. They are addicted and have multiple irrational arguments why to keep on smoking.
Not only that, they want to also control their immediate future and won’t allow rational arguments brought up by others to restrict their freedom to smoke wherever and whenever they want.
The secret they won’t face is: they know it’s unhealthy and kills them, and they don’t want to smoke inside their own home, hoping it will help save them. This is magical thinking: like a one-year-old, who covers their face and thinks you are gone from the room. Smokers think if they smoke outside, it won’t kill them.
Another thought they might have: if their home smells clean, their lungs might be clean too. That is a fallacy. Dear smoker: due to your reduced capacity to smell, you might not know that your house smells, as well as you; it’s in your hair, in your breath, on your hands, in your clothing. Don’t delude yourselves. Non-smokers notice it immediately: you smell bad.
In spite of what people might think, decks are (limited) common property, made available by the developer for the owner’s use, but it is still common property and must be maintained and repaired by the strata corporation.
In reality, a bylaw is not needed to restrict what happens in common areas, because a new Rule can cover those. It is only out of courtesy, expediency and efficiency that a council tries to pass a bylaw about smoking on common areas, instead of a rule that only needs a majority vote to carry, and not 3/4 of the membership at the AGM. Limited common areas are more tricky – the decks.
Last night, after the speakers finished with singing the praises of continuing the status quo on smoking, I owed it to myself to speak up as a fresh-air advocate and defender of my rights of a healthy environment in my own home.
I went with my personal experiences, and didn’t bring up the rational arguments, as the smoking crowd seemed to be lacking any capacity of following an objective fact to its logical end.
As well, the chair and the strata manager already had refuted some of the irrational arguments with an explanation of the facts.
I explained how my life was no longer feasible in the strata complex and that I was leaving to live elsewhere, simply due to smoke in my home, from people that want to smoke and pollute my environment. I corrected myself and said that well, maybe they don’t want to smoke, as I assume that nobody really wants to smoke, but they are addicted. I would say get treatment, it is available, and get healthy; addiction is no excuse to continue to make it intolerable for others to live here.
The rest of what I said:
“I live in a block of eight units on my breezeway and owners of six of them smoke. Their smoke enters my home through the leaky walls, through the fresh air furnace intake, through the dryer and stove hood exhausts, the bathroom exhaust and from the outside onto my balcony, and I can’t have open windows. I have smoke in my house regardless if it’s a hot or a cold day. Smoke is distributed throughout my unit by the furnace and A/C systems. I want to say to the smokers that it is the reason that I am moving.
I had a sitter last week to look after my cat. She had three asthma attacks, because of the smoke while living in my home for a week. She doesn’t have attacks unless triggered by something, like smoke.
One last thing, if you think your unit or the complex is less desirable because of a smoking restriction, you are sadly mistaken.”
The vote was taken and although the tally was getting closer over the years, the smokers have it: 28 against, 24 for.
What didn’t get explained at the AGM and what I leave to the strata council chair and the strata manager to explain to the owners, is that new developments are taking place in the courts.
It is now accepted in court that Strata corporations are liable to a certain extent for the consequences of second hand smoke (SHS). The Human Rights Tribunal and a BC Supreme Court judges’ last year’s verdicts on the same subject has taken on new significance. Strata owners (complainants) applied to the courts for recourse to end what they say is a serious ongoing threat to their health and to their enjoyment of their own units that is being caused by the cigarette smoke. (This complaint I frequently have made to my strata council as well.)
To that end the complainants sought, in addition to a declaration that others were violating the nuisance bylaw, an order enforcing it that prohibits the neighbours from smoking in and about their own unit and on any portion of the common property that is likely to result in smoke going into the other units.
In their verdicts, the judges in both cases pointed out that the strata council had not done due diligence to address the issues after numerous complaints. Council had assumed it had done all they could, in view of the lack of a smoking bylaw in place – which had been voted down at the AGM. They had not enforced compliance from the smoking strata owner under the Use Of The Unit bylaw (nuisance bylaw), which is always available to any strata council:
No owner is allowed to use their unit in such a way that causes a nuisance to others.
Remedies could be:
- payment for remedies that might stop the smoke from contaminating the neighbour’s unit.
Where council lacked in action:
- council members had not visited the unit to investigate first hand how bad the problem really was,
- council had chalked up the complaining resident as a frequent complainer without cause, and was just a difficult person,
- council had not held a hearing with the ill resident to investigate the complaint or kept track of the complaints. The owners have a right to be heard by council.
Council must apply a system of remedies to avoid the finding by a court against them; they were found responsible for increased health problems and decreased enjoyment of living by strata owners/complainants, due to lack of appropriate actions in dealing with the complaints.
|BC Supreme Court:
Chorney v. The Owners, Strata Plan VIS770, 2011 BCSC 1811
BC Human Rights Tribunal:
McDaniel and McDaniel v. Strata Plan LMS 1657 (No. 2), 2012 BCHRT 167 and Chorney v. Strata Plan VIS 770, 2011 BCSC 1811
My complex contains many elderly people that look twenty years older than their age, due to their smoking and concomitant health problems. The three buildings of the complex, built 30 years ago, are elderly as well, and have outdated HVAC systems. Many dollars are needed to upgrade it, but that’s not in the picture. Other maintenance issues are already a burden that requires a future increase in strata fees. Maybe the smoking elderly identify with that situation of nearing the end of life expectancy; we keep smoking as it’s impossible to do something about it.
As the complex is built on leased land by a local development company consisting of a number of business investors, the purchase price is lower than comparable buildings: the price of the land is added in a monthly fee as a lease payment, which made the units about $100,00 cheaper than other, similar units for an average 2-bedroom unit.
This lower unit price seems to have the side effect of attracting more smokers – education and income levels are correlated. With higher education, the likelihood that a person smokes goes down.
Last year I decided I was waging a losing battle trying to convert the general attitudes of the smokers here who seem to be in the majority. The rights of non-smokers are squashed and not adequately defended by successive councils.
I cannot out-wait the smoking elderly – not a spring chicken myself. I bought into a newly built complex that has LEED (environmentally responsible) designation, with each unit its own HVAC system that doesn’t interfere with other’s habits. One more year, and I will have left the pollution in my home behind. I can’t wait! BUYER BEWARE.
If you really want to know which complex I am talking about, I could reply that it’s probably any older unit this all applies to, but send me a reaction and I will tell you.
References: Lesperance Mendes advises strata corporations and property managers on matters such as bylaw drafting, bylaw enforcement and collections. For more information about our strata law practice, contact Paul G. Mendes at 604-685-4894 or by email at firstname.lastname@example.org.